Eugenio Valdez v. State
13-14-00684-CR
| Tex. App. | Mar 31, 2015Background
- Appellant Eugenio Valdez was indicted for aggravated assault and tried in Victoria County; jury found him guilty and he received 99 years’ imprisonment.
- During the State’s opening argument the prosecutor said only two of three participants could remember the incident and that Valdez told police he could not remember what happened; no objection was made at trial to these statements.
- Deputy Isaac Ramirez testified for the State that he contacted Valdez the night of the offense and that Valdez repeatedly told him he could not remember the events.
- The State argued its opening remarks merely described evidence it intended to present, including what Valdez told police, and were therefore proper.
- Valdez appealed, claiming the prosecutor’s opening argument improperly commented on his failure to testify; the State contended the claim was unfounded and waived for lack of timely objection.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the prosecutor’s opening argument impermissibly commented on defendant’s failure to testify | Valdez: opening remarks were a direct or implied comment on his not testifying and prejudicial | State: remarks described anticipated evidence (what Valdez told police) and did not comment on trial testimony; in any event error was waived by no objection | Court: State did not comment on failure to testify; remarks were proper description of expected evidence; plaintiff waived review by failing to timely object |
| Whether failure to object at trial forfeits appellate review of alleged comment on defendant’s silence | Valdez: appellate review warranted for prosecutorial comment | State: doctrine requires timely, specific objection to preserve error; absent that claim is waived | Court: applied Texas precedent — objection requirement preserves issues and affords trial court opportunity to cure; claim waived |
Key Cases Cited
- Cruz v. State, 225 S.W.3d 546 (Tex. Crim. App.) (comment on silence must be manifestly intended or necessarily taken as such)
- Nowlin v. State, 507 S.W.2d 534 (Tex. Crim. App.) (indirect allusions insufficient; must point to absence of evidence only defendant could provide)
- Cockrell v. State, 933 S.W.2d 73 (Tex. Crim. App.) (failure to object at trial waives appellate review of prosecutorial comment on silence)
- Garcia v. State, 887 S.W.2d 862 (Tex. Crim. App.) (same: preservation required by timely objection)
- Moore v. State, 999 S.W.2d 385 (Tex. Crim. App.) (trial court instruction can cure most prosecutorial comments; preservation protects that remedy)
- Garza v. State, 126 S.W.3d 79 (Tex. Crim. App.) (preservation rules serve fairness and efficiency)